34 Mo. 242 | Mo. | 1863
delivered the opinion of the court.
The petition in this case contains a clear and concise statement of the facts, imposing a common law liability upon the appellant for the alleged negligence of its agents. But this is not enough for the appellant, who insists that the petition is bad because it does not likewise aver the facts necessary to create a statutory liability, and for this cause moves in arrest of judgment. It is unjust to the public that the time of the courts should be occupied in the consideration of a question so utterly devoid of merit.
There is nothing in the objection. The judgment, however, must be reversed.
There was a failure of evidence on the point of negligence. It was pretty clear the cattle were killed by the appellant’s engines, but no fact or circumstance attending the killing was given indicative of negligence. No witness in the case was present when the injury was committed, nor did the evidence establish the facts which, under the fifth section of the act concerning damages, dispenses with proof of actual negligence, viz., that the- road was not enclosed by a lawful fence at the place of the injury; nor that the accident did not occur at the crossing of a public highway. The evidence tended to show the absence of a fence, but there was nothing as to the public- highway: If a party would relieve himself of the burden of proving actual negligence, lie must show
Let the judgment be reversed and the cause remanded.